Karnataka High Court
M/S United India Insurance Co.Ld vs Smt Channabasamma on 31 January, 2022
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.5718/2010(MV)
C/W
MFA NO.5717/2010(MV)
MFA NO.5718/2010:
BETWEEN:
M/s UNITED INDIA INSURANCE COMPANY LIMITED
BRANCH OFFICE
GOVINDA KRUPA TRUST BUILDING,
2ND FLOOR, J C ROAD, SAGAR,
NOW REP BY ITS DIVISIONAL OFFICE
B.H. ROAD, SHIMOGA,
REP BY ITS DIVISIONAL MANAGER
... APPELLANT
(BY SRI. A M VENKATESH, ADVOCATE)
AND:
1. SMT RATHNAMMA
W/O D DODAPPA
AGED ABOUT 45 YEARS
OCC:TEACHER,
R/O HOUSE NO.B-6, 1ST CROSS
JAYASHREE CIRCLE,
NEW TOWN,BHADRAVATHI,
NOW R/O 3RD CROSS, RAGIGUDDA,
SHIMOGA
2. S N YOGESH
S/O NINGAPPA
AGED ABOUT 27 YEARS
DRIVER OF MARUTHI OMNI
NO.KA-27/M-1570
2
R/O RAGHAVENDRA EXTENSION
SHIKARIPURA
3. K M NEELAKANTHAPPA
S/O MARTHANDAPPA
AGE:MAJOR
OWNER OF MARUTHI OMNI
NO.KA-27/M-1570
R/O NEAR TIMBER DEPOT,
RANGE FOREST OFFICE,
SHIKARIPURA
... RESPONDENTS
(BY SRI. H. RAVINDRANATH, ADVOCATE FOR R1;
R2-3 SERVICE HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 19.03.2010 PASSED IN
MVC NO.136/2010 ON THE FILE OF DISTRICT JUDGE,
ADDITIONAL MACT-II, I FAST TRACK COURT, SHIMOGA,
AWARDING A COMPENSATION OF RS.6,000/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
MFA NO.5717/2010:
BETWEEN:
M/s UNITED INDIA INSURANCE COMPANY LIMITED
BRANCH OFFICE
GOVINDA KRUPA TRUST BUILDING,
2ND FLOOR, J C ROAD, SAGAR,
NOW REP BY ITS DIVISIONAL OFFICE
B.H. ROAD, SHIMOGA,
REP BY ITS DIVISIONAL MANAGER
... APPELLANT
(BY SRI. A M VENKATESH, ADVOCATE)
AND:
1. SMT CHANNABASAMMA
W/O LATE PUTTAPPA
AGED ABOUT 51 YEARS
2. GOWRAMMA
3
D/O LATE PUTTAPPA
AGED ABOUT 19 YEARS
BOTH ARE R/O JEENAHALLI VILLAGE,
BELAGUTTI HOBLI
HONNALI TALUK,
NOW R/O C/O SANKARNARAYANA RAO,
GANDHI BAZAAR
SHIMOGA
3. S N YOGESH
S/O NINGAPPA
AGED ABOUT 27 YEARS
DRIVER OF MARUTI OMNI
NO.KA-27/M-1570
R/O RAGHAVENDRA EXTENSION
SHIKARIPURA
4. K M NEELAKANTHAPPA
S/O MARTHANDAPPA
AGE :MAJOR
OWNER OF MARUTI OMNI
NO.KA-27/M-1570
R/O NEAR TIMBER DEPOT,
RANGE FOREST OFFICER,
SHIKARIPURA
... RESPONDENTS
(BY SRI. H. RAVINDRANATH, ADVOCATE FOR R3;
R1,2,4 SERVICE HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 19.03.2010 PASSED IN
MVC NO.19/2010 ON THE FILE OF DISTRICT JUDGE,
ADDITIONAL MACT-II, I FAST TRACK COURT, SHIMOGA,
AWARDING A COMPENSATION OF RS.2,41,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
PAYMENT.
THESE MFAs COMING ON FOR FINAL HEARING THIS
DAY, THROUGH VIDEO CONFERENCE/ PHYSICAL HEARING,
THE COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
These two appeals are at the instance of insurance company calling in question the legality and correctness of judgment and award dated 19.03.2010 passed in MVC Nos.136/2010 and MVC NO.19/2010 by the District Judge, Addl. MACT II, I Fast Track Court, Shimoga.
2. The claim petitions proceeded on the allegation that, among others deceased Puttappa and claimant Rathnamma were proceeding from Bangalore to Shikaripura on 10.01.2005 in motor vehicle bearing registration No.KA- 27-M-1570 and at about at 3.30 a.m. and when the vehicle reached near Sadhana Theatre, Arasikere, on account of rash and negligent driving of the driver control over the vehicle was lost and said vehicle dashed against a big tree resulting in death of Puttappa and injuries to Rathnamma and several others.
3. Before claims Tribunal, respondent Nos.1 and 2 - driver and owner of the offending vehicle remained exparte. Respondent No.3-insurance company filed a detailed written 5 statement denying the material averments made in the claim petition.
4. During the trial, PW1 and PW2 were examined and Exs.P-1 to P-11 were marked on behalf of claimants. One of the officials of insurance company was examined as RW1 and policy of insurance was marked as Ex.R-1.
5. Learned Tribunal upon appreciation of evidence and hearing the learned counsel on both sides allowed the claim petitions in part and awarded compensation.
6. Learned counsel appearing for the insurance company in both the appeals assailed the impugned judgment and award on the solitary ground that offending vehicle was a private car being not used for carrying passengers on hire and reward and it was covered with the Act policy and therefore, insurance company is not liable to reimburse the compensation awarded and direction to the contrary made by the learned Tribunal is illegal and therefore, it is liable to be set aside. He therefore submits that appeal is entitled to be allowed.
6
7. Learned counsel for the respondents-claimants per contra, submits that upon appreciation of entire evidence including the policy of insurance Ex.R-1, learned Tribunal rightly allowed the claim petitions and therefore, there is no good ground to interfere with the same and as such he prays for appeal being dismissed.
8. There is no dispute about the fact that insured vehicle was a private omni car bearing registration No.KA-27- M-1570 and it is not a passenger vehicle for carrying passengers for hire or reward. Ex.R-1 - policy of the insurance shows that an Act policy was issued and no additional premium was paid to cover the risk of passengers in the insured vehicle.
9. It is well settled that passengers in a private car, which is not used for carrying passengers for hire or reward are not third parties vis-a-vis said vehicle. When an Act policy is issued without collecting additional premium to cover the risk of inmates in a private car, there is no liability on the part of the insurance company to pay compensation for personal injury or death due to accident to such inmates. In 7 this behalf, it is apt to refer to the observation of a Division Bench of this Court in BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD. vs. MAHADEV PANDURANG PATIL & ANOTHER [ILR 2011 KAR 850], which is as follows:
"14. From the scheme of Chapter XI, the statutory insurance which is made mandatory is only to protect the interest of third parties. Section 146 deals with the necessity for insurance against third party risks. Section 147 deals with the requirement of policies and limits of liability. Sub-clause (i) of Clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person of damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Whereas sub- clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Section 2(35) of the Act defines what a public service vehicle means i.e. any motor vehicle used or adopted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab contract carriage and stage carriage. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle however the liability in so far as they are concerned is limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a goods carriage. Therefore, it is clear the statutory insurance is confined to the death or bodily injury to any passenger of a public 8 service vehicle caused by or arising out of the use of the vehicle in a public place.
15. Therefore the passenger of a vehicle which is not meant for public service is not covered under this Section. The said passenger in the case of a two wheeler is the pillion rider and in the case of three wheeler and four wheeler the occupants of such vehicle who are not carried in the said vehicle for hire or reward. Therefore, the insurance policy taken in respect of a vehicle, in which they are travelling as such passengers are not treated as third parties and such an insurance do not cover the risk of such persons. The reason is Section 147 does not require a policy to cover the risk to passengers who are not carried for hire or reward. The statutory insurance does not cover injuries suffered by occupants of the vehicle who are not carried for hire or reward and the insurer cannot be held liable under the Act. The occupants/passengers/inmates of a private vehicle do not fall within the definition of the word third party. Therefore, the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of the vehicle, passengers in such private vehicle or a pillion rider in the case of a two wheeler. Gratuitous passengers who are not carried for hire or reward in a vehicle other than a public service vehicle cannot be construed as third parties.
16. If the risk of an occupant of a car, inmate of a vehicle or passenger in a private car, is to be covered, additional premium has to be paid. If no additional premium is paid their risk is not covered. The statutory liability under Sections 146 and 147 of the Act has to be read with the terms of the insurance policy issued under Section 146 of the Act. But that does not prevent an insurer from entering into 9 a contract of insurance covering a risk wider than the minimum requirement of the statute whereby the risk to gratuitous passengers could also be covered. A third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward, if a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy additional premium is required to be paid. The liability is restricted to the liability arising out of the statutory requirement under-Section 146 only.
17. In view of the authoritative pronouncement of the apex Court holding that an occupant/inmate/passenger in a private car is not a third party the finding recorded by the tribunal that the insurance policy issued covers the risk of such persons and therefore the insurance company is liable to pay compensation amount is illegal and contrary to the law declared by the apex court. In fact in the policy no additional premium is received by the insurance company to cover the risk of such persons. It is clear from the terminology used in the policy which fact is not in dispute. In one of the cases additional premium is collected to loading the risk of third party only as is clear from the policy that loading was not meant to cover risk of inmates of a private car and therefore merely because an additional premium is collected under the said policy, it cannot be inferred that the risk of inmates of a car are covered. The words are specific that the loading is done in order to cover only third party risk, it is not a case of additional premium being collected to cover the risk of inmates along with third parties. Therefore, in the facts of this case we are satisfied as the insured has not paid additional premium and the insurance company has not collected any additional premium, the risk of the occupants 10 of a private car was not covered. Therefore, liability foisted on the insurance company cannot be sustained and accordingly, it is hereby set aside."
10. In view of the above and since the policy of insurance issued by the insurance company is an Act policy without collecting any additional premium for covering the risk of inmates of the car, liability to pay compensation on account of death or injuries suffered by the inmates of the car cannot be imposed on the insurance company. Therefore, finding of the learned Tribunal to the said extent is without authority of law. Accordingly, appeals are entitled to be allowed. Hence, the following:
JUDGMENT (1) Appeals are allowed.
(2) Judgment and award dated 19.03.2010 passed in MVC No.136/2010 and MVC No.19/2010 by the District Judge, Addl.
MACT II, I Fast Track Court, Shimoga, is set aside to the extent it fastens liability to pay the compensation on the appellant herein.
11(3) Registry to transmit the records to the learned Tribunal forthwith.
(4) Amount in deposit, if any, shall be refunded to the appellant.
Sd/-
JUDGE DR